*1 756
ists that a approaching pital. train was either The court held that because the re- not, occupying crossing. taking port identify person did May security blood from measures used May against filed suit the Missouri-Kan- absent, a sample for the blood chain of Company seeking sas-Texas Railroad to re- establishing custody was not shown cover his damages. May alleged that analyzed May. from actually blood came crossing question railroad was extra-haz- ardous and that the defendant railroad of the results of a hospital report lab company negligent failing was to install blood-alcohol test is admissible as a business adequate warning hospital devices. Trial was to a record of the when the evidence jury, verdict, and on its in the trial court shows that the record was made judgment entered plaintiff May regular course business and the other nothing take from the requirements defendant railroad of Tex.Rev.Civ.Stat.Ann. art. company. appeals (Vernon) objections The court of civil re- 3737e are met. versed the report urged may very of the trial court and are here credibility remanded the cause for new trial. weight 583 well affect the record, admissibility. S.W.2d 694. Thom but not its 355, Hogan, (4th as 361 Cir. v. 308 F.2d The court appeals of civil held that States, 1962); 211 Wheeler v. United F.2d First, court respects. trial erred in three 19, (D.C. 1953); v. Munici 23 Cir. Sullivan the court appeals held that the trial 1070, 1072 pality Anchorage, 577 P.2d rejecting court erred in evidence of other (Alaska 1978); Wagon v. Hafner’s Woolley occurring accidents under similar circum- 757, Wheel, Inc., 413, 22 Ill.2d 176 N.E.2d crossing Second, stances at the question. State, (1961); 760 Thomas v. 493 S.W.2d appeals court of civil held that the trial 832, (Tex.Cr.App.1973); 833 Jackson v. admitting court erred in a blood-alcohol test State, 228, 499, 159 262 Tex.Cr.R. S.W.2d prepared sample May’s from a blood 501 (Tex.Cr.App.1953). shortly taken after his arrival at Scott & Third, correct, Hospital. White appeals the court of civil The court of civil however, reversing held that the trial court abused its refusing discretion in new remanding a trial amendment trial court and the cause for tendered May Accordingly, application at the close of his case-in- trial. for writ refused, chief. of error no reversible error. agree We the trial court erred
in excluding evidence of certain similar ac
cidents. Evidence of earlier accidents
which reasonably occurred under similar necessarily
but not identical circumstances
was admissible. See Missouri Pac. RR. v. Cooper, (Tex.1978). S.W.2d al., Petitioners, et Jack E. DURHAM accidents,
The exclusion of these similar by May support offered his contention extra-hazardous, that the crossing was BARROW, John Guardian Ad Litem et reasonably probably calculated to cause and al., Respondents. improper judg did cause the rendition of an No. B-8205. ment in the case. Tex.R.Civ.P. Supreme Court of Texas. disposition present appli Our error, however, cation for writ of should not May interpreted approving holding be the court of civil trial court admitting report
erred in the blood-alcohol
as a business record of & White Hos- Scott *2 Hammaker, a Westergren, County Atty.,
Mike T. R. ried Co Le-Thi Vietnamese Jr., national, Bandy, County Atty., Corpus and her three Asst. Christi, petitioners. marriage to this previous children had five more country. The Hammakers Christi, Whittle, Corpus respon- Rene twins, Deanne and including children dents. Daniel, who were born in United States in 1970. DENTON, Justice. *3 plaintiffs,
The
the natural mother and
country,
Donald
returning
After
to
guardian ad
two minor children
litem of
job
pro-
and
great difficulty keeping
had
suit,
prior
in a
a bill of review to
This caused
viding
large family.
for his
children,
and
set aside
of
which were
difficulties
considerable marital
to return the children to the natural moth-
inability to com-
Le-Thi’s
intensified
Co
adoptive parents
plea
er. The
filed a
in bar
or
with her husband
English
municate in
grounds
plaintiffs
on the
lacked
that
dependent upon
totally
was
others. She
standing
a bill of review because
food, clothing and
provide
her husband
they
parties
adoption,
were not
to the
and
children.
for herself and the
shelter
standing
thus
had no
as a matter
law.
arrival in this
years
A few
after their
plea
The trial court sustained the
in bar and
living in
country,
family
when the
was
granting
dismissed the action without
leave
Ohio,
eight
took all
unexpectedly
Donald
to amend.
Christi,
where he
Texas
Corpus
children to
appeal,
plaintiffs argued
On
Children’s
them at a Catholic
abandoned
sustaining
plea
trial court had erred in
family to
Center. Co Le-Thi followed
(1)
in bar on the
three theories:
basis of
what
Texas,
comprehend
but she could not
plaintiffs
that both
to the
contacts
subsequent
In her
happened.
had
part
suit which was a
of one con-
with both the welfare workers
affecting
parent-child
tinuous suit
rela-
attorney, no
through
appointed
courts
(2)
in
tionship;
guardian
ad litem
pro-
explain the
interpreter
provided
was
proceeding had not been
the termination
language.
ceedings to her in her native
discharged,
represent
but had continued to
Christi, Co
Corpus
After she arrived in
siblings
subsequent
in
modification
upon the Nueces
dependent
Le-Thi was
suits,
therefore entitled to notice
and was
(hereinafter re-
Unit
County Child Welfare
(3) that both
adoption proceedings;
of the
Unit) for
the Child Welfare
ferred
as
plaintiffs
standing
had
as next friend of the
1973,
Hammakers
August
support.
In
adopted
children. The court of civil
petitioned the
Welfare Unit
and the Child
judgment
of the trial court
reversed
County
of Nueces
Domestic Relations Court
cause, holding
and remanded the
that nei-
dependent
to have all the children declared
plaintiff
standing
party
ther
as a
to the
had
have the Hammakers’
neglected, and to
adoption,
plaintiffs
but that both
had stand-
The court is-
terminated.
ing
next
It also held that the
as
friend.
Welfare
gave
which
the Child
sued orders
of the
guardian
representation
ad litem’s
children, and
temporary custody of
Unit
the termination
children had been limited to
rep-
appointed
guardian ad
litem
judg-
affirm the
suit.
dren were restored to her the Child (1971). Le-Thi Welfare Unit. Practice 18.26 Both Co § and Barrow were to the termination allegations directly In addition to the at- standing in a bill proceeding, and both have tacking adoption judgment, petition decree. of review to attack the termination may attacking also be the ter- construed as Law, Speer’s Simpkins, Family Texas mination decree. An attack on the invalidi- ed., (1976). 5th 14:30 at 615 § ty of the termination is in the refer- found alleged misrep- ences to the Next, determined it must be resentations the Child Welfare Unit in have stand whether Co Le-Thi and Barrow proceeding, the termination and the invalid- ing adoption. Section 15.07 attack ity termination decree also (Vernon 1980)provides Tex.Fam.Code Ann. question peti- into by the references in who has been divested of that an individual by which other tion to the two decrees decree los rights by a termination parental children were returned to Co Le-Thi and interest in the chil legal rights es all rights purportedly restored. the termina subject who were the dren addition, alleged it is that it is in the best Spratian, 543 proceeding. Wiley tion them to interest the children to return (Tex.1976); McKnight, see S.W.2d prayer their natural mother. The states 15.07, on Tex.Tech.L. Commentary Section objectives sought by this bill of review. 11.09(a)(7) provides (1974). Rev. Section objectives Those are to have parental rights have that a whose person set aside and a entered is not entitled to notice of been terminated restoring parental rights. Co Le-Thi’s If Therefore, if the subsequent *5 aside, only adoption judgment the were set valid, Le-Thi judgment was Co termination Co not there- Le-Thi’s would bring review as standing no to a bill of has Therefore, by request be the for restored. Rogers v. party a to the parental rights compels a restoration of the Searle, (Tex.Civ.App 533 440 S.W.2d . —Cor peti- conclusion the allegations of However, 1976, writ). if the pus Christi no setting tion are aside the also directed at invalid, Le- was then Co termination decree judgment this bill of re- by termination adoption, party any necessary Thi was a view.3 entitled to notice and she was Ann. 11.- adoption §§ suit. Tex.Fam.Code only issues before this Court are 09(a)(7) then have and 16.03. would She plaintiffs standing whether the have of standing adoption by to attack the bill bring aside the a bill of review to set McDonald, 4 Texas Civil Prac review. See adoption judgment and the termination de- (1971).4 tice 18.26 § These must with- cree. issues be resolved considering validity underly- out the appeals, civil it was In the court of ing Although judgment. termination the argued standing to attack that Barrow urged merits review have been of the bill of representation on his of adoption the based by the in of and discussed the court guardian ad litem in the the children as appeals, they civil are not before this Court. proceeding. The basis of termination affecting rule, proceedings general party argument
As a
a
to a
that all
the
relationship and within
prior judgment
standing
parent-child
a bill
the
has
receive the same
Cavanaugh,
jurisdiction
of
of the court
review. Gunn v.
391 S.W.2d
standing
parent’s
Although
petition
to attack
4. Since the natural
the main thrust of the
by
judg-
against
adoption judgment,
adoption
require
directed
the
the'
would
a favorable
decree,
pleadings,
at
liberal construction of these
an
ment on the attack of the termination
separate
be
would
tack on the termination decree has also been
trials of these two matters
remand,
attempted.
against
determined
the
On
it will be
bill of review
desirable with the
necessary
whether the
ele
in the trial court
ments of a bill of review have been
first. Tex.R.Civ.Pro.
termination decree tried
alleged.
Goldsmith,
(Tex.
See Baker v.
guardian in the termination ad litem of judgment Accordingly, we affirm ceeding. guardian representa- A ad litem’s appeals that reverses the court related to suit tion is limited matters and remands trial court Wright appointed. which he was court for further trial the cause Jones, (Tex.Comm.App. S.W.2d proceedings. 1932,holding Termination suits approved). affecting separate any from suit are GREENHILL, J., opin- in an C. dissents relationship, a termi- parent-child JJ., POPE, in which ion STEAKLEY final, appealable judg- nation join. Therefore, does not have ment.5 Barrow BARROW,J., sitting. not standing as a neces- to attack GREENHILL, Justice, dissenting. suit, he sary party to that Chief proceedings un- entitled to notice of those mother’s where the natural This is a case (Ver- Ann. der Section 11.09 Tex.Fam.Code pro- in one parental rights were terminated 1980). non two of ceeding, years later and two proceed- adopted in another children were holding Barrow and Co was not proceeding ing. The termination standing, Le-Thi had next friend court adoption, Upon learning allega appealed. civil concluded however, the natural were “those Mrs. tions contained in Barrow, litem mother, guardian ad acting be someone which would asserted suit, termination the children next to the minor capacity friend of review. by bill Although children.” 574 at 861. attacked S.W.2d that Barrow subject pleaded adoptive parents the The the children were the *6 standing to suit, had no participants in and Mrs. Hammaker they were not adoption. suit, bring review the necessary parties not a bill of the and were Blume, adoption. Colwell 456 S.W.2d the v. holdings the agree I most of with 1970, writ (Tex.Civ.App. Antonio — San opinion. For the in Court’s reasoning the e.). ref’d n. Since the children themselves r. opinion, I in the Court’s reasons stated parties adoption, necessary were not Mrs. Ham- nor agree neither Barrow that standing have a next friend would not re- bring a bill of standing to maker have adoption by of review.6 attack the bill that agree adoption. I also view of the would Mrs. Hammaker petition re- both Barrow and We hold that the for bill of I standing the termination. to attack both the termination de- have view has attacked holding disagree with the that adoption judgment, strongly both cree and on is an attack of review that this bill Hammaker have Court Barrow and Co Le-Thi to set the termination. standing bring a bill of review (Tex. Wiley which the termination Spratlan, litem in suits in 543 S.W.2d relationship sought. parent-child See also 1976). 11.07(b) Ann. Section Tex.Fam.Code Smith, Commentary 1980) Title Parent (Vernon provides requests on for fur that (1976). Child, concerning 29-30 have 8 Tex.Tech.L.Rev. children who ther court action parent- subject affecting of a suit been the Texas, relationship jurisdictions, as new should be a a total child by filing legislative petition. may a The intent to set stranger suit bill of review not a pro 11.10(a) apparent adoption. generally, 2d which 92 ALR is also in Section aside an guardian appointment ad (1963). of a vides for the 813-32 The opinion suggest argument proceedings does not that all Court’s that constituted Mrs. allegation Barrow and Hammaker have asserted one cause to be an that seems necessary all the elements for a successful pro- same file number used in all the bill of review of the termination. Since this record, ceedings. Looking whole it at the got hearing cause beyond never on the seems clear that Barrow and Mrs. Ham- court, in the plea Durhams’ bar trial the maker the bill of review never conceived of point Durhams never reached a in the liti- as an until rear- attack on termination gation they where attack either gument before this Court. sufficiency of the such pleadings waive opinion support for the Court’s finds complaint. Had the Durhams such made an holding the bill of review attacked that court, the pleadings attack on in the trial in a both the and the termination Barrow and Mrs. Hammaker would have peti- few bill of review statements plead- had an opportunity to amend their states Bar- opinion tion. The Court’s that ings any to cure It defects. thus be would alleged row and Mrs. inequitable for to dispose this Court misrepresenta- Child Unit made Welfare cause on basis of whether Barrow and tions to before Con- them the termination. Mrs. Hammaker all properly alleged Mrs. liberally strued for Barrow and most elements of a bill of review of the termina- allege pleadings their that Yet, tion. it crucial to the Child them to believe Welfare Unit led Court decide whether the bill of after her children could be returned to her review did attack the termination because the termination. Six of her children only Barrow and Mrs. Hammaker have repre- only returned false to her. Thus standing to attack the termination. after they allege occurred sentation that A reading clearly whole record the Child Welfare termination when shows that Barrow and Mrs. Hammaker and others that Unit told Mrs. Hammaker only attacked the In the trial be returned to Deeanne and Daniel could parties court both submitted letter briefs in Welfare Unit while in fact the Child response plea They to the Durhams' in bar. adopt arranging for the Durhams to clearly indicate both sides understood the twins. the bill of review to be an attack on the adoption rather an attack of the ter- than also the reference in the *7 impediment lieved that once the County children in the Nueces courts consti- the Child Welfare was removed appoint- tuted cause that Barrow’s one so rights as parental restore her attorney ment litem continued as Unit could long ad Al- previously. continuing jurisdic- they purported as the to do Nueces court had parental though tion The basis for their “motion to restore over children. parental rights ap- Although civil a motion restore The Durhams’ brief in the court of peals “Appellants may proper adoption of before the contained the statement: do have been Code, proceedings Family present validity not not prior statutes do attack the held proceeding. parental rights. contemplate A seem such a wherein finally cuts off all termination Co Le-Thi Hammaker to Deeanne and Daniel regain rights parent would of a it Appellee’s To all the were at 5. I terminated.” Brief find appear adopt have place that a terminated mother would no where record Barrow Mrs. could, how- natural children. She refute Hammaker that statement. ever, parent rights if she of a obtain most appointed managing conservator. at- rights” irregular, best no one has at which returned six
tacked two decrees If Mrs.
of her children Mrs. HammaKer. regain wanted to
Hammaker termination,
rights by an attack on the for her proper
would have been the vehicle eight chil- accomplish the return of all now an the termina-
dren. Even attack on rights be-
tion would seem to affect six
tween Mrs. and her other
children. pleadings
I believe nor that neither suggest record the bill as whole brought as an on both review was attack It and the termination province of act as an this Court respondent a sympathetic
advocate even for
like Mrs. Hammaker. We should not decide
what cause of action Mrs. Hammaker
should have and then misread
pleadings to find that she did such a
cause of action. only
Because bill review attacked nor where neither Barrow no parties, they
Mrs. Hammaker were have
standing. The judgment of the court
civil appeals judg- should be overruled and affirming
ment should be entered the trial
court. POPE, JJ., join
STEAKLEY
dissent.
FORT WORTH NEUROPSYCHIATRIC Petitioner,
HOSPITAL, INC., CORPORATION, Respondent.
BEE JAY
No. B-8979.
Supreme Court of Texas.
May
Rehearing July Denied Court notes mination. The briefs of the in the decrees bill of review to the two court on do attack Mrs. purportedly which restored Hammak- termination either.1 parental prayer for a rights2 er’s judgment restoring rights. These The closest Barrow and Mrs. Hammaker an on the support references do not attack came to an attack on the termination Rather, suggest that due they termination. argument court of civil was their be- past experience Mrs. Hammaker involving proceedings all of the